As observed by this Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90, conjugal rights are not merely creature of statute but inherent in the very institution of marriage.
In R.V.S.L. Annapurna v. R. Saikumar, (1981) Suppl. SCC 71, there were matrimonial problems between the husband and the wife. The Court observed that the two young persons had led to more than one litigation. The Court felt that such a case should not be driven to a ‘bitter legal finish’. On the contrary, every possible effort must be made so as to restore the conjugal home and bring back harmony between the husband and the wife. The Court appreciated the efforts made by learned counsel for both the sides and after some amount of discussion, persuasion and suggestion, the husband and wife agreed to live together in a separate house. The Court stated that they would live together for one month jointly on a trial basis and parents or grant parents of both the spouses would not, for the time being, visit them. The Court stated; “Not that we are suggesting that parents or grandparents should not under any circumstance visit their children or grandchildren, but we are making an experiment in creating mutual confidence and in that endeavour even possible irritations and misapprehensions should not be allowed to vitiate the atmosphere. Solely on that basis and without casting any reflection on any person, we have made the suggestion, which is acceptable to both sides. Therefore, within this provisional period of one month the husband and wife will live together, hopefully happily without their parents or grandparents visiting them during this spell”.
It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression “conjugal”. Shorter Oxford English Dictionary, 3rd Edn. Vol. 1 page 371 notes the meaning of ‘conjugal’ as “of or pertaining to marriage or to husband and wife in their relations to each other”. In the Dictionary of English Law, 1959 Edn., at page 453, Earl Jowitt defines ‘conjugal rights’ thus:
“The right which husband and wife have to each other’s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, S. 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (S. 22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R. v. Jackson (1891) 1 QB 671)”.
In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself, See in this connection Mulla’s Hindu Law – 15th Edn. p. 567 – Para. 443, There are sufficient safeguards in S. 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission – 71st Report on the Hindu Marriage Act, 1955 – “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus-
“Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one’s off-spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” – and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”.
16. Section 9 only is a codification of pre-existing law. Rule 32 of O. 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction. Sub-rule (1) of R. 32 is in these terms:
“Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both”.
17. It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by court where the disobedience to such a decree is wilful i.e. is deliberate, inspite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against dis- obedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a wilful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same inspite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break-up of marriage. It cannot be viewed in the manner the learned single Judge of Andh Pradesh High Court has viewed it and we are therefore unable to accept the position that S. 9 of the said Act is violative of Art. 14 or Art. 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view [AIR 1984 SC 1562]